Citation Nr: 1505647
Decision Date: 02/06/15 Archive Date: 02/18/15
DOCKET NO. 12-26 287 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for a right leg condition.
2. Entitlement to service connection for a sinus disability, to include as a result of exposure to herbicides.
3. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis for the period prior to January 1, 2014.
4. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis for the period beginning January 1, 2014.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Andrew Mack, Counsel
INTRODUCTION
The Veteran served on active duty from July 1962 to January 1968, and June 1970 to July 1986.
This appeal is before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript is included in the claims file.
The Veteran's representative submitted additional evidence in July 2014, along with a signed waiver initial RO review of such evidence. See 38 C.F.R. § 20.1304(c).
In his September 2012 substantive appeal, the Veteran raised the issue of service connection for cardiovascular-renal disease, including disability manifested by high blood pressure and low heart rate. It is thus referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b) (2014).
The issues of service connection for a sinus disability, to include as a result of exposure to herbicides, and a rating in excess of 10 percent for lumbar spine degenerative arthritis for the period beginning January 1, 2014, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDINGS OF FACT
1. Prior to the promulgation of a decision, the Veteran withdrew in writing his appeal concerning the issue of service connection for a right leg condition.
2. Prior to January 1, 2014, the Veteran's lumbar spine degenerative arthritis was manifested by moderate pain with flare-ups with activity and after sitting or lying down for long periods of time; difficulty bending, lifting, standing, and walking for long periods of time or distances, and with other general activity of the lumbar spine; having to sleep in a recliner due to his back and other muscle pain; and range of motion limited, at most, to 80 to 90 degrees of flexion, with no muscle spasm or abnormal gait.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of an appeal by the Veteran concerning the issue of service connection for a right leg condition have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2014).
2. The criteria for a rating in excess of 10 percent for lumbar spine degenerative arthritis for the period prior to January 1, 2014, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Withdrawal
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, in a May 2014 written statement, the Veteran withdrew his appeal for the claim of service connection for a right leg condition. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this claim, the Board does not have jurisdiction to review it, and it is dismissed.
II. Duties to Notify and Assist
Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated in March 2010. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).
As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's VA medical records, identified private treatment records, and written statements from the Veteran's wife and friends have been obtained. Also, the Veteran was provided a VA examination of his lumbar spine disability in March 2010. This examination and its associated report were adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).
Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the May 2014 Board personal hearing, the VLJ complied with these requirements. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. Thus, the VLJ sufficiently complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and any error in notice provided during the Veteran's hearing was harmless.
Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
III. Increased Rating
Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.
A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran's lumbar spine degenerative arthritis is currently rated under Diagnostic Code (DC) 5242-5237, and is thus rated under the criteria for lumbosacral strain. See 38 C.F.R. §§ 4.20, 4.27. His disability is therefore rated according to either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DCs 5237, 5243.
Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective from September 26, 2003, the following evaluations are assignable with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:
* 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height;
* 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis;
* 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine;
* 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and
* 100 percent for unfavorable ankylosis of the entire spine.
Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a.
Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a.
An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician. The following evaluations are assignable for intervertebral disc syndrome based on incapacitating episodes: 10 percent where incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; 20 percent where incapacitating episodes have a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; 40 percent where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and 60 percent where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).
When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
On March 2010 VA examination, the Veteran reported pain of approximately 5/10, but having flare-ups with pain increased to 6/10 when bending over a lot. He reported some pain into his right leg, but no numbness; it was noted that the pain did not follow a dermatomal pattern, and primarily was in his right knee. He reported using a brace that helped minimally, and being able to walk for 30 minutes or one-half mile. He reported having physical therapy, injections, and medications, but no surgery, and that his back affected his activities of living, making it difficult for him to stand for long periods of time or do a lot of bending or lifting. He also reported that his disability affected his ability to do his job setting grave monuments due to difficulty with heavy lifting, pushing, and pulling. He further reported not having had any doctor-ordered bed rest in the last 12 months, and no changes in bowel or bladder function.
On physical examination, forward flexion was to 90 degrees, with pain from 80 to 90 degrees. Extension, and right and left lateral flexion and rotation were all to 20 degrees with pain from 10 to 20 degrees. There was no increased pain or decreased range of motion with repetitive range of motion. On neurologic examination, there was normal sensation to light touch. Motor strength was full and deep tendon reflexes were normal and symmetric in the lower extremities. Straight leg raise was negative, and there was no tenderness to palpation along the lumbar spine or paraspinal muscles. X-ray examination revealed moderate degenerative arthritic changes of the lumbar spine at L3-L4, L4-L5, and L5-S1. The examiner noted that it was feasible that the Veteran could have pain that could further limit function, especially after being on his feet all day long.
In a March 2010 statement, the Veteran asserted that he slept in a recliner, as he could not sleep in a bed, and that when he got up in the morning or from sitting for a long period of time, his muscles were stiff and it took him several minutes to walk normally. In a March 2010 statement, the Veteran's wife asserted that, if the Veteran lifted anything heavy, his back would be out for days. In March 2010 statements, the Veteran's friends, L.C. and B.R., asserted that the Veteran had a lot of back pain and great difficulty with stiff muscles after sitting.
Private treatment records reflect that, in December 2010, the Veteran reported he had had previous surgery on his right knee. He denied any paresthesia, but complained of some weakness in that right leg and some near falls with it giving way on him, but no bowel or bladder dysfunction. He reported a dull, throbbing, daily pain, much worse when standing, walking, bending, and getting up from a sitting position. He reported sleeping in a recliner for the last couple of years because of the hip and low back pain. On examination, the Veteran's back was slightly tender over the paraspinals, and there was lumbar flexion pain at 90 degrees and extension pain at 5 degrees. Straight leg raise was negative. On neurological examination, there is no weakness or decreased sensitivity to pinprick, and deep tendon reflexes were normal.
A private medical evaluation in February 2012 reflects that the Veteran complained of progressively worsening back pain, worse with more activity, and improved by sitting, with occasional pain radiating to the anterior thighs bilaterally. On examination, the Veteran had a full but uncomfortable range of motion, with flexion and extension at the waist, and no point tenderness, palpable deformity, or paraspinous muscular spasm. On neurologic examination, straight leg raise was negative bilaterally, reflexes were normal at the knees and ankles bilaterally, and there was no focal weakness or numbness. The Veteran was assessed as having "basically moderate back pain," which he described as "being rated anywhere from a 1/10 to a 5/10."
Also, in February 2012, the Veteran reported low back pain radiating into his right hip and leg. On examination, he had positive tenderness to the lower back and hip, but ambulated without difficulty. On neurological examination there were no focal deficits, but the Veteran was assessed with sciatica.
February to March 2012 and July to September 2013 private treatment notes reflect that the Veteran underwent Intervertebral Differential Dynamics (IDD) and decompression therapy for low back pain. From February to March 2012, he was consistently noted to have had positive tenderness to the back with decreased range of motion, and to ambulate without difficulty. In July 2013, it was noted that the Veteran had normal symmetry, tone, strength, and range of motion, with no effusions, instability, or tenderness to palpation. The Veteran was consistently noted to have had no focal deficits on neurological examination.
During his May 2014 Board hearing, the Veteran testified that his back problems had gotten worse, that he was going to have to have an operation, and that he was having decreased sensation now in his left foot due to his spine disability.
In this case, a rating in excess of 10 percent for lumbar spine degenerative arthritis for the period prior to January 1, 2014, is not warranted.
The Veteran's lumbar spine disability was shown to be manifested during this period by moderate pain with flare-ups with activity and after sitting or lying down for long periods of time, and difficulty bending, lifting, standing, walking for long periods of time or distances, and with other general activity of the lumbar spine. He has also reported problems such as having to sleep in a recliner due to his back and other muscle pain. Range of motion was limited, at most, to 80 to 90 degrees of flexion, with combined range of motion of the thoracolumbar spine greater than 120 degrees, even considering any extra loss due to pain. In March 2010, forward flexion was to 90 degrees, with pain from 80 to 90 degrees, and extension and right and left lateral flexion and rotation were all to 20 degrees with pain from 10 to 20 degrees, with no increased pain or decreased range of motion with repetitive range of motion. Flexion on private treatment in December 2010 and February 2012 was full to 90 degrees, with pain, and range of motion was noted to be normal in July 2013. There was no muscle spasm or abnormal gait during this period due to the Veteran's spine disability.
Even considering the Veteran's pain and functional impairment during this period, his lumbar spine disability did not approximate flexion of 60 degrees or less, combined range of spine motion of 120 degrees or less, or any other criteria warranting a rating of 20 percent or greater under the General Rating Formula for Diseases and Injuries of the Spine.
Also, the Veteran was not during this period noted to have had incapacitating episodes due to his spine disability, and the record reflects no periods of acute signs and symptoms that have required bed rest and treatment prescribed by a physician; the Veteran specifically denied having had any doctor-ordered bed rest in the last 12 months on March 2010 VA examination. Therefore, any higher rating for incapacitating episodes under DC 5243 is not warranted.
The Board notes that the Veteran has, during this period, reported some radiating pain into his legs, and particularly his right leg. However, objective neurological examinations of the Veteran's legs have consistently been negative. On March 2010 VA examination, while noting that the Veteran reported radiating pain into his right leg, the examiner noted that the pain did not follow a dermatomal pattern and primarily was in his right knee; on neurologic examination, there was normal sensation to light touch, spinal nerves were intact, and strength and reflexes in the legs were normal. Likewise, on December 2010 and February 2012 private evaluations, on neurological examination, there was no weakness or decreased sensitivity to pinprick, deep tendon reflexes were normal, and there was no focal weakness or numbness. During the Veteran's IDD treatments in 2012 and 2013, he was consistently noted to have had no focal deficits on neurological examination. Also, while on February 2012 private treatment, the Veteran was assessed with "sciatica," on neurological examination at that time, there were found to have been no focal deficits.
In light of the consistent objective medical evidence, the Board finds that, during the period in question, the Veteran did not have any objective neurologic abnormalities that can be appropriately rated under any separate diagnostic code.
The Board also notes the Veteran's May 2014 testimony that his lumbar spine disability symptoms had worsened recently, and that the medical record, including an April 2014 private treatment record, reflects recently worsening symptoms, with onset of approximately January 1, 2014. However, the Board is not addressing the Veteran's rating beginning January 1, 2014, in this decision, and this matter is addressed in the remand below.
Furthermore, the Board has considered referral for extraschedular consideration under 38 C.F.R. § 3.321(b). However, while the Board recognizes the Veteran's difficulties caused by his lumbar spine degenerative arthritis prior to January 1, 2014, such symptomatology and impairment, as discussed above, is adequately contemplated in the applicable rating criteria. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board has considered the Veteran's asserted difficulties including moderate pain with flare-ups with activity and after sitting or lying down for long periods of time; difficulty bending, lifting, standing, and walking for long periods of time or distances, and with other general activity of the lumbar spine; having to sleep in a recliner due to his back and other muscle pain; and range of motion limited, at most, to 80 to 90 degrees of flexion. However, such difficulties do not represent an unusual disability picture for the rating assigned. In view of the circumstances as a whole, the Board finds that the rating schedule is adequate in this case, even considering the collective and combined effect of all of the Veteran's service-connected disabilities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).
Also, while on March 2010 VA examination the Veteran reported that his disability affected his ability to do his job setting grave monuments due to difficulty with heavy lifting, pushing, and pulling, the record does not reflect that his disabilities have been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disabilities, during the pertinent period. In this regard, there has been no assertion or evidence that the Veteran was unemployable due to his service-connected disabilities prior to January 1, 2014. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
Accordingly, a rating in excess of 10 percent for lumbar spine degenerative arthritis for the period prior to January 1, 2014, is not warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Hart. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.
ORDER
The claim of entitlement to service connection for a right leg condition is dismissed.
A rating in excess of 10 percent for lumbar spine degenerative arthritis for the period prior to January 1, 2014, is denied.
REMAND
Regarding the Veteran's claim of service connection for a sinus disability, although the Veteran had active service from June 1970 to July 1986, the most recent service treatment record associated with the claims file is a January 1968 examination report for separation from service. Moreover, at the time of that examination, the Veteran reported having a history of ear, nose, or throat trouble, and chronic or frequent colds. Furthermore, in a February 2010 statement, the Veteran reported receiving treatment for sinus infection in 1989 and a sinus operation in 1992 at Millington Naval Hospital; a February 2002 private treatment record and May 2010 VA treatment record also indicate that the Veteran underwent sinus surgery in April 1992 at "Millington Naval." However, no post-service treatment records from Millington Naval Hospital are associated with the claims file. See 38 C.F.R. § 3.159; see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992).
Regarding the issue of a rating in excess of 10 percent for lumbar spine degenerative arthritis for the period beginning January 1, 2014, as noted above, the Veteran testified in May 2014 that his lumbar spine disability symptoms had worsened recently, and now included left foot symptomatology, and the medical record, including an April 2014 private treatment record, reflects recently worsening symptoms, with onset of approximately January 1, 2014. This April 2014 record reflects that the Veteran reported recent increased back symptoms and new symptoms in the bilateral lower extremities; that the onset of his symptoms was noted to be January 1, 2014; that muscle spasm, guarding, and flexion limited to below 50 degrees were noted; and that the Veteran had neurological signs in the lower extremities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); and also VAOPGCPREC 11-95 (1995).
Accordingly, the case is REMANDED for the following action:
1. Make reasonable attempts to obtain the Veteran's service treatment records for his period of active service from June 1970 to July 1986.
2. Make reasonable attempts to obtain all pertinent medical records dated from July 1986 to the present from Millington Naval Hospital, to specifically include any treatment for sinus infection in 1989 and sinus surgery in 1992.
3. Make reasonable attempts to obtain all outstanding VA medical records related to the Veteran's lumbar spine disability dated from September 2010 to the present.
4. Schedule the Veteran for a VA examination to evaluate the current level of severity of his lumbar spine degenerative arthritis. The claims file should be made available to the examiner in conjunction with the examination. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. Any neurological manifestations, to specifically include any of the lower extremities, must be identified.
5. After completing the above, and any other necessary development, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide the Veteran an additional supplemental statement of the case.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs